No Fault Divorce

It has been a hot topic in the press of late, and non fault divorce may just have come a step closer to becoming a reality. Within the last couple of weeks, the government launched a consultation to consider reforming the legal requirements for divorce, with the aim of removing fault from the divorce process.

Currently, if you want to get divorced, and do not want to wait for a minimum of 2 years after you have made the decision to separate, it is necessary to make allegations that the spouse is to blame, either as a result of their ‘unreasonable behaviour’ or adultery. Frequently, the reasons provided for within a divorce petition are highly contentious, and inevitably lead to heightened tensions and bitterness.

Instead, the proposals aim to create a system in which divorcing couples are encouraged to avoid unnecessary acrimony and to achieve a more constructive separation, which is particularly important where there are children of the marriage. The same principles would apply to civil partnerships. The following proposals, amongst others, have been put forward:

• Retaining irretrievable breakdown as the sole ground for divorce.

• Replacing the five facts used to prove irretrievable breakdown with a notification process to notify the court of the intention to divorce.

• Removing the opportunity for a spouse to contest the divorce application.

This approach is far more in step with the wider family legal system, when dealing with financial or child arrangements, which seeks to help people resolve issues in a non-confrontational way. Indeed family lawyers frequently sign up to a code of practice through Resolution committing to dealing with such matters in a non-confrontation manner, which is often at odds with a fault-based divorce process.

This is not a new issue: there have been calls to reform the system for many years, however the matter has been brought to prominence again following the decision in the recent case of Owens v Owens [2018] UKSC 41, in which the Supreme Court ruled that Mrs Owens was not entitled to a divorce even though both parties openly accepted that the marriage had broken down on the basis that the reasons given in the petition were deemed insufficient to satisfy the court. Lady Hale, who presided over an appeal by Mrs Owens, stated that she had found the case ‘very troubling but it was not for the court to change the law only to interpret it, it is Parliament’s responsibility to change the law’.

There is a growing feeling that the current system is out of date and out of touch with modern life, and that this case (although highly unusual) is testament to that: requiring a person to remain within a marriage that they no longer wish to be a part of is, for many, unjust. The outcome of this case could also encourage a party to go to greater lengths within the petition just to make sure.

On the other side of the debate, there is some concern that, if the fault element is taken away that divorce will become too easy, and that divorce rates could sky-rocket as a result, and it is also argued that there are already avenues available to parties who wish to avoid making allegations of fault by waiting for two or five years following separation, depending on whether the spouse’s consent is forthcoming.

However, following on from this case, there has been fresh momentum for change, resulting in the commissions proposals. The commission’s consultation runs until 10 December 2018, and is stated as being aimed at Parliamentarians, the family judiciary, family law practitioners, academics, support organisations and members of the public with an interest in family conflict, children’s wellbeing or the legal requirements for marriage and civil partnership dissolution in England and Wales. The outcome remains to be seen, however there does appear to be good reason to believe that radical reform of the divorce process is perhaps as close as it has been for many years.

If you would like advice on separation or divorce, contact one of our specialist legal advisors in our Family Law team.

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